Cassandra Johnson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 15, 2004
01A33052_r (E.E.O.C. Apr. 15, 2004)

01A33052_r

04-15-2004

Cassandra Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cassandra Johnson v. United States Postal Service

01A33052

April 15, 2004

.

Cassandra Johnson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33052

DECISION

Complainant filed a timely appeal with this Commission concerning the

agency's compliance with the terms of a November 22, 2002 settlement

agreement. The Commission accepts the appeal. See 29 C.F.R. � 1614.402;

29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The November 22, 2002 settlement agreement provided, in pertinent part,

that:

(1) Complainant shall receive a total payment of $170,000.00. This

payment is the sum total of compromised compensation for the following

categories and amounts:

$15,000.00 for back pay, including overtime (if applicable).

Complainant's retirement, sick leave and annual leave shall be

credited in amounts temporally commensurate with back pay. In other

words, complainant shall be credited consistent with the percentage

of complainant's most recently recorded annual Postal income the

$15,000.00 back pay represents�if the $15,000 in back pay represents

one-half of complainant's most recently recorded annual salary, she

is to receive retirement benefits, sick and annual leave commensurate

to one-half year;

$20,000.00 for attorney fees.....

$10,000.00 for future pecuniary expenses;

$30,000.00 for past pecuniary expenses;

$95,000.00 for non-pecuniary damages.

Applicable payroll withholding will be taken from the $15,000.00 back

pay amount. Complainant is responsible for any federal, state and/or

local taxes that may result from receipt of the remaining $155,000.00.

Complainant shall be reinstated as a USPS employee at level 6 or

above. Complainant shall begin working with duties and under the

conditions specified per �Attachment 1" on November 23, 2002 at 1600.

A chair designated for complainant's exclusive use shall be provided

by management.

By letters to the agency's legal counsel, dated January 6, 2003

(hereinafter referred to as �letter 1") and February 28, 2003 (hereinafter

referred to as �letter 2"), complainant, through her attorney, claimed

that the agency breached the settlement agreement.

In letter 1, complainant claimed that the agency failed to provide a

suitable chair. Specifically, complainant claimed that the only chair

available for her use was mechanically unsuitable to accommodate her

disability, and she had to share it with a co-worker. Additionally,

complainant noted that several mark-up clerk jobs were available which

she could perform without an accommodation, but that because the agency

classified her as a �workers' compensation/limited duty employee,� she

was not eligible for these positions. Complainant argues that assignment

to one of these positions would have the effect of accommodating her

disability, and requests that the agency assign her to a mark-up clerk

position at its Royal Oak facility. Complainant also claimed that the

agency improperly assigned her as a Level 6, Step H, rather than Step

M, and improperly classified her as a �re-hire� with an entry date of

�11-23-02,� which adversely affected her pay, vacation, sick leave and

retirement. Furthermore, complainant argues that her entry date was

to be adjusted depending on what percentage $15,000 was of her salary,

asserting that the $15,000.00 amount is equivalent to 8.53 pay periods.

Complainant additionally asserted that based on this same adjustment

calculation, she should be restored 51.93 hours of annual leave and 34.12

hours of sick leave. Complainant claimed that she received neither, and

noted that agency's personnel office notified her of computer problems

in accomplishing this transaction.

In letter 2, complainant claimed that the agency failed to comply with

the matters identified in letter 1, and that she would file a motion

to compel compliance. Additionally, complainant claimed that the

agency acted in bad faith regarding the tax consequences of the various

designations of the lump sums awarded to her.

On April 28, 2003, complainant filed the instant appeal. Therein,

complainant stated that the November 22, 2002 settlement agreement

was negotiated during the damages phase of a hearing before an EEOC

Administrative Judge, regarding three consolidated complaints where

the Commission made a finding of discrimination due to the agency's

failure to provide her with a reasonable accommodation, a suitable chair.

Complainant claims that the purpose of the settlement agreement was to

reinstate her to work, because she was compelled to retire in December

1999, and to provide her with a suitable chair as of the first day of

her return, November 23, 2002. However, complainant contends that the

chair was not provided until January 2003, after months of prodding by

her attorney. Additionally, complainant now alleges two violations of

the settlement agreement.

First, regarding provision (1)(A), complainant contends that her

annual and sick leave, and retirement, have not been credited in

amounts commensurate in time with the back pay award. In particular,

complainant notes correspondence from the agency dated February 14,

2003, indicating that it could not comply with this provision and

instead offered complainant cash for the sick and annual leave.

Complainant argues that the agency further breached this provision

by failing to credit complainant with retirement hours. Additionally,

complainant makes reference to correspondence from the agency dated April

25, 2003, confirming that it would pay complainant cash for the annual

and sick leave at issue. Complainant claims that the agency's offer of

cash constitutes evidence that the agency did not adjust and credit

her retirement, annual, and sick leave as mandated by provision (1)(A).

Furthermore, complainant argues that this provision requires the agency

to adjust complainant's starting date so that she is credited for her

retirement hours, and annual and sick leave.

Second, regarding provision (1)(F), complainant contends that the

agency placed her in an improper employee status, under �workers'

compensations principles,� (described as �limited duty assignment�), and

not as a disabled employee (described as �disabled employee accommodated

with light duty�). Complainant argues that this placement restricts her

ability to transfer, and requires her to continually provide documentation

to verify her impairment. Complainant also argues that the agency

deceived her in this regard, and improperly failed to advise her of

the availability of mark-up clerk positions, or to otherwise place

her in a mark-up clerk position, arguing that her light duty status

restricts her to only light duty assignments. Complainant avers that

she would not have entered into the settlement agreement if she had

realized the impact of being characterized as a �workers' compensation

employee.� Complainant, through her attorney, further contends that

agency counsel initially agreed to change complainant's designation,

but that his replacement has failed to follow through on this matter.

Complainant avers that this action amounts to a failure to accommodate

her disability. Complainant requests that her complaint be reinstated

at the point at which processing ceased.

In response, the agency asserts that complainant failed to file a

breach claim with the EEO Director, as required by 29 C.F.R. � 1614.504,

instead working through the agency's legal counsel. The agency argues

that complainant's failure to file a breach claim with the EEO Director

prevented the agency from investigating and remedying the matters raised

by complainant. The agency further argues that because its EEO office

did not have the opportunity to investigate the breach claim and so did

not issue a determination on the claim, the instant appeal is premature.

Nonetheless, in addressing the breach claims, the agency indicated that

the income tax dispute, as reflected in letter 2, is now resolved. As to

complainant's claim of breach regarding provision (1)(A), the agency

argues that because complainant �tacitly accepted� the agency's offer

of $1,700, in lieu of crediting her leave balances with annual and

sick leave, she cannot properly assert that this constitutes a breach.

The agency further argues that restoration of leave as contemplated by

provision (1)(A) was administratively burdensome, and that complainant

was not harmed by the offer of cash, such that this offer cannot be

viewed as a material breach.

Regarding provision (1)(F), the agency argues that complainant

misunderstands �light duty� status, and avers that complainant's

placement, including her job assignment and employment �status,� were

specified in an attachment to the settlement agreement, which is an Office

of Workers Compensation Programs (OWCP) job offer. The agency claims

that because it fully adhered to the assignment specified in the attached

OWCP job offer, it did not breach provision (1)(F). Furthermore, the

agency asserts that �light duty status� does not prevent an employee from

being considered for other positions, and that complainant's arguments in

this regard evidence a fundamental misunderstanding of this designation.

Additionally, the agency argues that complainant raises a new claim

outside the scope of the settlement agreement regarding her request for a

mark-up clerk position, which must be processed as a separate complaint.

The agency further argues that even if complainant prevailed in her

breach claim, the Commission is unlikely to order reinstatement of

the complaint, given the large cash award received by complainant, and

relatively minor nature of the alleged breach. The agency also argues

that complainant is not entitled to an award of attorney's fees, noting

that complainant's attorney filed the instant appeal prematurely.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties, reached at

any stage of the complaint process, shall be binding on both parties.

The Commission has held that a settlement agreement constitutes a

contract between the employee and the agency, to which ordinary rules

of contract construction apply. See Herrington v. Department of Defense,

EEOC Request No. 05960032 (December 9, 1996). The Commission has further

held that it is the intent of the parties as expressed in the contract,

not some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990). In ascertaining the intent of the parties with regard

to the terms of a settlement agreement, the Commission has generally

relied on the plain meaning rule. See Hyon O v. United States Postal

Service, EEOC Request No. 05910787 (December 2, 1991). This rule states

that if the writing appears to be plain and unambiguous on its face,

its meaning must be determined from the four corners of the instrument

without resort to extrinsic evidence of any nature. See Montgomery

Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).

As an initial matter, we find that although the record indicates

that complainant did not file her breach claim with the EEO office,

she did send letters 1 and 2 to the agency's legal counsel, which was

sufficient to put the agency on notice of the breach claim. Moreover,

upon notice of the instant appeal, the agency had an opportunity to

undertake any additional investigation that it deemed necessary, and

submit its determinations to the Commission. Accordingly, given that

the agency had adequate notice of the breach claim, and opportunity to

undertake an investigation, we find that complainant's failure to submit

her breach claim to the EEO Director constitutes harmless procedural

error, and that this appeal is properly before the Commission.

Provision (1)(A)

Complainant asserts that this provision mandates that her leave

balances be credited with additional hours of annual and sick leave

(51.93 hours of annual leave and 34.12 hours of sick leave, assuming

that $15,000.00 represents 8.53 pay periods), and that complainant's

start date be �adjusted� back by 8.53 pay periods for the purpose of

computing retirement benefits. On the other hand, while the agency does

not proffer any interpretation, it nonetheless avers that the payment

of $15,000.00 in back pay and lump sum cash payment for the calculated

amount of sick and annual leave, constitutes substantial compliance with

this provision in light of the evidence that its computer system will

not accept the adjustment to complainant's leave balances. The agency

does not address its obligation regarding tender of additional retirement

benefits to complainant.

The Commission determines that agency correspondence dated February 14,

2003, reflects that when complainant's personnel office encountered

technical difficulties crediting her leave balances, the matter was

referred to a specialist at its headquarters, who �recommended� a cash

payment in lieu of a leave adjustment. This correspondence further

reflects that its computer system would not accept the leave adjustment

without a concomitant adjustment in work hours. Based on this evidence,

we find that the agency is claiming that it cannot preform its obligation

as specified in this provision. However, we find that the record is

not sufficiently developed to determine whether it is (a) technically

impossible for the agency to make this leave adjustment; or (b) if

possible, whether it would constitute too great of an administrative

burden for the agency to implement the adjustment. Without this evidence,

we cannot ascertain whether an �in lieu of cash� payment is justified.

We find no evidence that complainant �tacitly accepted� the agency's offer

as a cash payment to satisfy this provision. Based on complainant's

appeal statement, it is clear that she does not find this to be a

satisfactory alternative. Moreover, we find that the agency simply

does not address its obligation regarding retirement benefits, and the

record is devoid of any evidence regarding an adjustment to complainant's

retirement benefits. Accordingly, we determine that the agency's finding

of no breach of provision (1)(A) is VACATED. This matter is REMANDED

to the agency to obtain information regarding these matters.

Provision (1)(F)

On appeal, complainant concedes that the agency provided complainant

with a suitable chair, and does not appear to be pursuing her breach

claim regarding this matter. However, complainant contends that the

agency placed her in a duty status which substantially reduces her

chances to transfer to another position, which was not understood at

the time of execution.<1> Specifically, complainant avers that she

desires a mark-up clerk position in the agency's Royal Oak facility,

which would accommodate her disability, but is not eligible for that

position because of her light duty status.

The Commission determines that provision (1)(F) makes reference to an

attachment to the settlement agreement, which describes complainant's

assignment. Review of this attachment indicates that it is an offer

of a limited duty assignment, based on complainant's OWCP approved

injury. The record is devoid of any evidence to confirm what type of

assignment the agency actually placed complainant in, i.e., light duty

or limited duty. In this regard, we find that placement in a light

duty assignment, rather than the specified limited duty assignment,

could constitute a breach of this provision. Accordingly, we find that

evidence confirming which type of assignment complainant has is crucial

to this determination. Therefore, we REMAND this case to the agency

to obtain evidence documenting whether complainant is serving under a

light or limited duty assignment.

Finally, we agree with the agency that complainant's claim concerning her

desire for an assignment to a mark-up clerk position as a reasonable

accommodation for her disability must be construed as a separate

complaint. See 29 C.F.R. � 1614.405(c). We advise complainant to contact

an EEO Counselor regarding this matter should she desire to pursue this

claim in the EEO process.

For the reasons set forth above, we REMAND this matter to the agency to

undertake additional development of the record, as set forth more fully

in the ORDER below.

ORDER

The agency is ORDERED to take the following action:

1. Within thirty (30) calendar days of the date this decision becomes

final, the agency is to complete an investigation for the purpose of

obtaining additional evidence necessary to adjudicate complainant's

breach claim, as follows:

The agency is to provide a written assessment regarding whether or not

its computer system can accommodate the adjustments to complainant's

annual and sick leave contemplated by provision (1)(A) of the settlement

agreement, as described herein. If such an adjustment can be made, the

agency must provide evidence reflecting that the requisite adjustments

have been made, or if not, the reason for failing to do so.

The agency shall supplement the record with documentation reflecting

how it will implement the award of �retirement benefits� to complainant

under provision (1)(A), based on the additional 8.53 pay periods to be

added to these benefits.

The agency must obtain documentary evidence verifying whether complainant

has a �light duty assignment� or a �limited duty assignment.�

2. Upon completion of this investigation, the agency is ordered to issue

a final decision on complainant's breach claim, with appropriate appeal

rights to the Commission.

A copy of all pertinent documentation verifying completion of the above

actions, including issuance of a final decision, must be sent to the

Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant in

the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

April 15, 2004

__________________

Date

1We note that complainant's record statements variously describe her

duty assignment as both �light� and �limited.�